Master Subscription Agreement
BY SIGNING YOUR SUBSCRIPTION CONTRACT, OR BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF TRUE IMPACT, INC’S ONLINE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SIGN THE SUBSCRIPTION CONTRACT OR YOU MUST SELECT THE "I DECLINE" BUTTON, AND YOU MAY NOT USE THE SERVICE.
For reference, a Definitions section is included at the end of this Agreement. Capitalized terms used in this Agreement without definition shall have the meanings given to them in the Definitions section.
Terms of Service
1. License Grant and Restrictions
True Impact hereby grants Licensee a non-exclusive, non-transferable, worldwide right to use the Service, solely for Licensee’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Licensee are reserved by True Impact and its licensors.
Licensee shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
Licensee may use the Service only for internal business purposes and shall not: (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or volatile of third party privacy rights; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iv) attempt to gain unauthorized access to the Service or its related systems or networks.
2. Your Responsibilities
Licensee is responsible for all activity occurring under the User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Licensee shall: (i) notify True Impact immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to True Impact immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another True Impact user or provide false identity information to gain access to or use the Service.
3. Account Information and Data
True Impact does not own and is not responsible for any data, information or material that Licensee submits to the Service in the course of using the Service ("Customer Data"). Licensee, not True Impact, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and True Impact shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of breach), True Impact will make available to Licensee a file of the Customer Data within 30 days of termination if it so requested at the time of termination. Upon termination for cause, right to access or use Customer Data immediately ceases, and True Impact shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
6. Confidential Information and Nondisclosure
If either Licensee or True Impact gains access to certain confidential information of the other Party ("Disclosing Party") concerning the Disclosing Party's prices, business, plans, technology, products, and other non-public information of the Disclosing Party (collectively, “Confidential Information”), then the terms of this Section will apply. Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential by the Disclosing Party or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information may also include information that is disclosed orally, provided that such information is designated as confidential at the time of disclosure. The Disclosing Party owns all right, title and interest, including all intellectual property rights in Disclosing Party's Confidential Information. Each Party agrees that it will not use in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement, nor disclose to any third party (except as required by law or to such Party’s attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the Disclosing Party. Each Party will take reasonable precautions to protect the confidentiality of the Confidential Information of the Disclosing Party that are at least as stringent as it takes to protect its own Confidential Information.
Information will not be deemed Confidential Information under this Agreement if it is (a) known to the Receiving Party prior to its receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) to have become publicly known through no wrongful act of the receiving party, except through a breach of this Agreement by the Receiving Party; or (c) had been rightfully received from a third party with the right to make such a disclosure; (d) to have been entirely independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; (e) has been approved for release by the disclosing party’s prior written authorization. If legally obligated to do so, the Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that the receiving party provides prompt advanced notice to the disclosing party to enable the disclosing party to seek a protective order or otherwise limit or prevent the disclosure.
Receiving party agrees to: (a) maintain disclosing party’s Confidential Information in confidence and limit disclosure on a need-to know basis, (b) take all responsible precautions to prevent unauthorized disclosure, and (c) treat such information as it treats its own comparably sensitive information, until the Confidential Information no longer meets the definition of Confidential Information as set for in this Agreement through no fault of Receiving party. Each party hereby represent that is has entered into a written agreement with each of its employees requiring them to maintain in confidence the confidential information of the third parties that said employees received in the course of their employment.
Each party agrees that it will not disclose the existence of the Agreement, or any of its provisions, to any third party without the specific, prior, written consent of the other party hereto. If disclosure of this Agreement, any of its terms, or any other Confidential Information disclosed hereunder is required by Applicable law, rule, or regulation, or is compelled by a court or government agency, authority or body, then the following provisions shall apply: (a) the parties shall use all legitimate and legal means to minimize the disclosure to third parties of the contents of this Agreement, including but not limited to seeking protective order; (b) the party being requested to disclose the terms of this Agreement or other Confidential Information shall inform the other party as soon as possible following the receipt of the notice purporting to require disclosure, but in no event less than ten (10) business days in advance of the disclosure; and (c) the party from whom disclosure is sought shall give the other party a reasonable opportunity to review and comment upon the disclosure, and any request for confidential treatment or a protective order pertaining thereto, prior to making the disclosure. The parties may disclose the terms of the Agreement in confidence to their respective legal counsel, accountants, bankers, and financing sources as necessary in order to obtain services from such third parties. The obligations stated in this Section shall survive the termination of this Agreement. Except as expressly stated herein, neither party may use the other party’s name or trademarks in advertisements, brochures, banners, letterhead, business cards, reference lists, or similar communications without the other party’s prior written consent.
7. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. True Impact and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. True Impact does not endorse any sites on the Internet that are linked through the Service. True Impact provides these links to you only as a matter of convenience, and in no event shall True Impact or its licensors be responsible for any content, products, or other materials on or available from such sites. True Impact provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
8. Charges and Payment of Fees
Licensee shall pay all fees and charges to your account in accordance with the fees, charges, and billing terms in effect as set forth in the applicable Purchase Exhibit Licensee shall make payment within thirty (30) day after Licensee’s receipt of the proper original invoice or receipt of license or performance of Services, whichever is later. All pricing terms other than those which are publicly listed on our website or on the Service are confidential, and you agree not to disclose them to any third party.
9. Billing and Renewal
Fees for other services will be charged on an as-quoted basis. All fees and charges are payable in United States dollars.
Licensee will provide True Impact with complete and accurate billing and contact information. This information includes Licensee’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact Licensee agrees to update this information within 30 days of any request by True Impact. If the contact information provided is false or fraudulent, True Impact reserves the right to terminate access to the Service in addition to any other legal remedies.
Within ninety (90) days of the expiration of the current term and any renewal term for the True Impact Services, True Impact will notify Licensee of the upcoming expiration and any proposed charges for the renewal term. The proposed charges for any True Impact service renewal term will not exceed the charges for the prior year, plus the lesser of (i) 3% of such prior year’s charges or (ii) the increase in True Impact’s list prices. Except as expressly provided otherwise, there will be no other increase in True Impact charges. The provision of True Impact services and platform will automatically renew at the end of the initial term and any renewal term, unless: (i) Client notifies True Impact in writing at least sixty (60) days prior to the expiration of the initial service Term or the then-current renewal term that Client does not desire to renew; (ii) Client fails to pay the undisputed True Impact charges required under this Agreement and fails to cure such non-payment within ten (10) days’ notice from True Impact.
If you believe the bill is incorrect, you must contact True Impact in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights available to True Impact at law or in equity, True Impact reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears) by giving at least ten (10) business days advance written notice of True Impact’s intent to suspend or terminate Licensee’s license and/or access to the Service.
True Impact reserves the right to impose a reconnection fee in the event Licensee’s license or access to the Service is suspended and thereafter request access to the Service. Licensee agrees and acknowledges that True Impact has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if the account is delinquent. Nothing in this Section 11 shall relieve True Impact of its obligations under Section 6 (“Confidential Information and Disclosure”)
11. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Term will be as set forth in the Statement of Work (“SOW”) or as otherwise mutually agreed upon in writing, commencing on the date you agree to pay for the Service. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), True Impact will make available to Licensee a file of readily exportable Customer Data within 30 days of termination if so requested at the time of termination. Licensee agrees and acknowledges that True Impact has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
12. Termination for Cause
Any uncured breach of either party’s obligations or unauthorized use of the True Impact Technology or Service will be deemed a material breach of this Agreement. Either party may terminate this Agreement or any Purchase Order if the other party materially breaches any of its material obligations of this Agreement and fails to cure such breach within five (5) day after receiving written notice of the breach. True Impact, may then terminate the password, account or use of the Service. In addition, True Impact may terminate a free account at any time. Upon termination of this Agreement by True Impact for Licensee’s breach, Licensee shall cease all use of the License and Services. There shall be no termination charges for Services or Licenses not yet provided or not yet accepted. Licensee will be responsible for payment of all Services provided and all Licenses that have been accepted by Licensee prior to the Effective date of termination. Termination is not an exclusive remedy for breach, and is in addition to other rights or remedies that may be available.
True Impact warrants, represents and covenants to Licensee that:
(a) True Impact will perform the Services in a workmanlike manner in accordance with the practices, professional standards of, and using no less than industry standard resources used in, well-managed operations performing services similar to the Services. True Impact will comply with all applicable federal, state and local laws, statutes, ordinances, rules, regulations and orders in regard to its obligations hereunder.
(b) Throughout the Term of this agreement, True Impact shall maintain a commercially reasonable disaster recovery plan, periodically update and test the operability of its plan no less than every twelve (12) months. Such plan will include, at minimum, that (i) True Impact will notify Licensee in writing within four (4) hours of any disaster that could materially and negatively impact Licensee's access to the Services (the “Disaster Notice”); (ii) True Impact will provide Licensee, within twenty-four (24) hours of said Disaster Notice, a plan to continue providing the Services in accordance with this Agreement, and (iii) the Services will be fully operational within seventy-two (72) hours of the initial Disaster Notice. In the event of a disaster (including any event that constitutes a force majeure event), True Impact shall implement all necessary disaster recovery plans.
Uptime, Availability, and Changes. The Services shall achieve a daily up-time level of ninety-nine point nine percent (99%) ("Uptime"). For purposes of calculating actual Uptime in order to determine its conformity to the above referenced level, the following formula shall be used:
Uptime (expressed as a percentage) = (24 hours–Downtime- Maintenance Time) / (24 hours -Maintenance Time)
For purposes of the formula set forth above, the following definitions shall apply:
"Downtime" shall mean that period of time per day for which the Services are unavailable or unusable excluding time the system is not available during planned maintenance windows which shall be no more than the number of hours per week indicated on each schedule (“Maintenance Time”). The Services shall be considered unavailable or unusable if: (i) the Services are not being received by Licensee; or (ii) Service is corrupted, inconsistent or illegible; or (iii) response time is unacceptable; or (iv) Licensee cannot access the Services for any period of time. Downtime for any incident shall commence at the time Licensee makes a bona fide attempt to contact True Impact by telephone or otherwise to report a problem and shall end when True Impact restores such Services to satisfactory working order.
The Services shall be fully operational and available to Licensee 365 days per year, 24 hours per day. As used herein, “Available” means that Licensee will be able to access the Services and the functionality of the Services and retrieve and input data as set forth herein excluding Maintenance Time.
Maintenance. True Impact shall provide Licensee with Maintenance Services for the Applications and Services as follows:
True Impact shall correct any failure of the Applications or Services to operate in good working order.
True Impact shall provide remote technical assistance and consultation to Licensee during the hours of 9 to 5, Eastern Standard Time, via telephone or electronic mail.
True Impact shall correct any Error detected by Licensee in the Applications or Services in accordance with the following schedule:
Schedule of Response/Resolution Times
Technical Severity Level
Level 1: Licensee is unable to use the Applications or Services resulting in an adverse impact on Licensee’s operations.
Level 2: Licensee is able to use the Applications or Services, but Licensee’s operations are severely impacted.
Level 3: Licensee is able use the Applications and Services with the exception of a specific function that is not critical to Licensee’s overall operations and a workaround can be readily achieved.
7 business days
As used herein, "Response Time" means the maximum time period permitted for True Impact to appoint its maintenance personnel to complete a technical assessment of an Error in connection with the True Impact Application or Services and establish a course of action for problem resolution, with such period commencing upon receipt of Licensee’s telephonic or email notification of such problem. "Resolution Time" means the maximum time period permitted for True Impact to correct or resolve an Error with such time period commencing upon the completion of the technical Response Time.
If the True Impact fails to meet the applicable Response or Resolution Times specified above (a “Failure Incident”), in addition to Licensee's other rights and remedies, Licensee shall receive a credit equivalent to the daily fee(s) applicable to the Service that was the subject of the Failure Incident.
Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND TO THE OTHER PARTY WITH RESPECT TO THE APPLICATIONS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14. Internet Delays
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TRUE IMPACT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15. Limitation of Liability
EXCEPT FOR THE CONFIDENTIALITY PROVISIONS IN SECTION 6 OR THE INDEMNIFICATION OBLIGATIONS IN SECTION 24, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM LICENSEE TO TRUE IMPACT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT FOR THE CONFIDENTIALITY PROVISIONS IN SECTION 6 OR THE INDEMNIFICATION OBLIGATIONS IN SECTION 24, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER COMMERCIAL OR ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Local Laws and Export Control
True Impact provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of True Impact’s services ("User") acknowledges and agrees that the services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated
Nationals are subject to change without notice. By using the Service, Licensee represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Licensee agrees to comply strictly with all United States and foreign export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
True Impact’s services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
True Impact and its licensors make no representation that the Service is appropriate or available for use in locations other than the United States. If Licensee uses the Service from outside the United States, Licensee is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
True Impact may give notice by means of a general notice on the Service, electronic mail to Licensee’s e-mail address on record in True Impact’s account information, or by written communication sent by first class mail or pre-paid post to Licensee’s address on record in True Impact’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Licensee may give notice to True Impact (such notice shall be deemed given when received by True Impact) at any time by any of the following: letter sent by confirmed facsimile to True Impact at the following fax number: (617) 848-9944; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to True Impact at the following address: True Impact, Inc., 59 Dartmouth Ave., Needham Heights, MA 02494 addressed to the attention of: Chief Financial Officer.
18. Modification to Terms
This Agreement and any nondisclosure agreement contains the entire understanding between True Impact and Licensee with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, dealing, and negotiations. No modification, alteration, or amendment shall be effective unless made in writing, dated, and signed by duly authorized representatives of both parties. No waiver of any breach hereof shall be held to be a waiver of any other subsequent breach. Each party’s right and obligations herein are in addition to any other rights and remedies provided by law or in equity, subject to Section 16 (Limitation of Liability). If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the validity of the remaining provision.
19. Assignment; Change in Control
This Agreement may not be assigned by either party without the prior written approval of the other, which consent shall not be unreasonably withheld. This agreement may be assigned without Licensee’s written consent by True Impact to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Licensee that results or would result in a direct competitor of True Impact directly or indirectly owning or controlling 50% or more of Licensee shall entitle True Impact to terminate this Agreement for cause immediately upon written notice.
20. Permission to Use Licensee’s Name
As True Impact’s services include the facilitation of information sharing and benchmarking among organizations, Licensee agrees that True Impact may publicly identify Licensee as a participant in these services to enable existing and prospective participants to properly contextualize the value of the information-sharing and benchmarking services.
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts and United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Licensee and True Impact as a result of this agreement or use of the Service. The failure of True Impact to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by True Impact in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and True Impact and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause beyond the reasonable control of such party.
Any provision of this Agreement found to be illegal or unenforceable shall be deemed severed, and the balance of this Agreement shall remain in full force and effect.
Neither party’s right to require performance of the other party’s obligations hereunder shall be affected by any previous waiver, forbearance or course of dealing, unless or only to the extent of any waiver given in writing. Failure or delay by either party to exercise any of its rights, powers of remedies hereunder shall not constitute a waiver of those rights, power or remedies, or the single or partial exercise of any other right, power or remedy.
22. Copyrights and Copyright Agent
Licensee agrees to abide by the Digital Millennium Copyright Act and any other applicable law, rule, or regulation.
True Impact hereby agrees to indemnify and hold harmless the Licensee, its affiliate, and any of the officers directors, employees or agents from and against any and all third party claims, expense actions, claims, and damages, including, without limitation, reasonable attorney’s fees, (collectively “Claims”) that the Software and/or Service infringes any patent, trademark, or other intellectual property right of a third party resulting in any final judgment, award, settlement, including attorney’s fees and/or other costs or expenses awarded by a court of competent jurisdiction provided that Licensee; (i) provide prompt notification to True Impact of such Claims in writing as not to prejudice the defense of such Claims, (ii) give True Impact the right to control and direct investigation, preparation, defense, and settlement of any Claims, provided such settlement shall not impose any liability or obligation upon Licensee without Licensee’s prior written consent, and (iii) gives assistance and full cooperation for the defense of same.
Should it be determined that the Software and/or Service infringes upon the intellectual property right of a third party, True Impact, at its sole cost and discretion may; (i) obtain for Licensee rights to use the Software and/or Service, (ii) replace or modify the Software and/or Service so it becomes non-infringing, (iii) obtain an equivalent replacement that performs the same functionality of the Software and/or Service, or (iv) should options (i), (ii), or (iii) not be sufficient to remedy the infringement, upon return of the Software and/or Service, refund all fees paid by Licensee for the Software and/or Service and terminate this Agreement.
The foregoing indemnification shall only apply to the extent that the infringement is the sole responsibility of Licensee and shall not apply in the event that the infringement results from the use of the Software and/or Service in combination with other products or services not authorized or provided by Vendor.
Without limiting or quantifying True Impact’s liabilities, obligations, or indemnities otherwise assumed by True Impact pursuant to this Agreement, True Impact shall maintain, at its sole cost and expense, commercial general Liability with limits of liability not less than one million U.S. dollars ($1,000,000) per occurrence and including liability coverage for bodily injury or property damage assumes in a contract or agreement pertaining to True Impact’s business and arising out of operation that business.
25. Entire Agreement
This Agreement, including the Statement(s) of Work and Privacy Notice, constitutes the entire agreement between the parties pertaining to the subject matter described in this Agreement and superseded all oral or written prior statements, representations, discussions, negotiations and agreements. No provisions in any purchase orders, or in any other business forms employed by or on behalf of either party in connection with this matter contemplated by this Agreement shall affect the terms and conditions of this Agreement, and no supplement or amendment of this Agreement shall be finding, unless executed in writing by both parties and specifically referencing the supplementing or amendment of this Agreement.
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
"True Impact" means True Impact, Inc., a Delaware Public Benefit Corporation, having its principal place of business at 59 Dartmouth Ave., Needham Heights, MA 02494;
"True Impact Technology" means all of True Impact’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by True Impact in providing the Service;
"Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service;
"Initial Term" means the initial period during which you are obligated to pay for the Service;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users designated by you who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;
"License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
"Online Order Center" means True Impact’s online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service;
"Service(s)" means True Impact’s services identified during the ordering process, developed, operated, and maintained by True Impact, accessible via http://www.trueimpact.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by True Impact, to which you are being granted access pursuant to this Agreement;
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by True Impact at your request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com.
Effective date: January 2014